Office of the General Counsel

Date: November 17, 2000
Matter of: [Claimant]
File Number: 00-0008

OPM Contact: Melissa Drummond

The claimant, an employee of the [agency], is requesting overtime back pay. He claims that he has been "underpaid" for 334 hours while at the GS-9 level and 213 hours while at the GS-11 level. We accepted the claim on June 5, 2000 and received information from the agency on October 3, 2000. For the reasons discussed herein, the claim is denied.

According to the agency, the claimant was hired by the [agency] in March 1998 for a physician assistant position at the [agency component] in [city, state]. Prior to that time and during the claimants employment with [agency], physician assistants have been covered under special pay rates. [Agency] establishes its special pay rates based on the career ladder of the occupation. [Agency] physician assistant occupation is in a two-grade interval pattern (GS-5/7/9/11). Therefore, the special pay rates have only been applied to those grade levels. Since special rates were not established for the GS-10 level, the claimant was paid for overtime at the GS-10, step 1 regular general schedule rate.

On March 28, 1999, the claimant received a career ladder promotion from the GS-9 to the GS-11 level. The claimant states that he should have been paid at a higher rate since he is a special rate employee. He believes that he should have been paid at a higher rate than the GS-10, step 1 regular rate, similar to the nurses employed at the [agency]. He, therefore, contends that the agency is obligated to establish a special pay rate at the GS-10 level for his occupation. We cannot speak to the issue of whether the agency should deviate from the current two-grade interval pattern for the physician assistant occupation and request OPM approval for the establishment of a special pay rate at the GS-10 level. This falls under the purview of agency discretion. However, we can address whether the claimant has been properly compensated by the agency.

The regulatory provision, which addresses this claim, is found in Federal law under 5 U.S.C. 5542(a)(2), which states:

For an employee whose basic pay is at a rate which exceeds the minimum rate of basic pay for GS-10, the overtime hourly rate of pay is an amount equal to one and one half times the minimum rate of basic pay for GS-10 (including any applicable locality-based comparability payment under section 5304 or similar provision of law and any applicable special rate of pay under section 5305 or similar provision of law.)

In essence, in locations where no GS-10, step 1, special rate has been authorized by OPM, the maximum overtime pay rate continues to be based on the scheduled rate for GS-10, step 1. Therefore, the agency is correct in their compensation of the claimant. The claim is denied.

OPM does not conduct investigations or adversary hearings in adjudicating claims, but relies on the written record presented by the parties. See Frank A. Barone, B-229439, May 25, 1988. Where the agency's factual determination is reasonable, we will not substitute our judgment for that of the agency. See, e.g., Jimmie D. Brewer, B-205452, Mar. 15, 1982, as cited in Philip M. Brey, supra.

This settlement is final. No further administrative review is available within OPM. Nothing in this settlement limits the employee's right to bring an action in an appropriate United States Court.